I have written many times in this column about the benefits of mediation. I have been aware of the dangers of overkill, special pleading (“he would say that wouldn’t he”) or being a prophet without honour in his own land.
However, recent developments south of the border prompt me to return to the mediation theme. Momentum is gathering elsewhere and, after a flourish a couple of years ago, I worry that Scotland might fall behind. This is important as those who have disputes to resolve may go where the system appears more flexible and progressive.
Mediation has often been used interchangeably and misleadingly with the term “alternative dispute resolution” (ADR). In April Sir Geoffrey Vos, Master of the Rolls and head of civil justice in England and Wales, said that he disliked the label “alternative” for non-court dispute resolution and he wanted the process moved into the mainstream. He observed: “ADR should no longer be viewed as alternative, but as an integral part of the dispute resolution process; that process should focus on resolution rather than dispute.”
More recently, a report from the Civil Justice Council (CJC) in England and Wales, led by Lady Justice Asplin, described ADR as a collective term for all dispute resolution methods, of which mediation is probably the most significant, where third parties assist people to explore resolution of a claim. Recognising existing compulsory initiatives, but also marking a departure from a landmark case seventeen years ago, the report concluded that requiring parties to attempt ADR at a certain stage or stages and/or permitting the court to make an order to that effect would be both lawful and “potentially an extremely positive development”.
With successful outcomes being achieved in the large majority of mediated cases, this makes sense, especially when the costs of litigating are often disproportionate to the sums in dispute in the case. As a mediator, I have lost count of the number of cases where the settlement amount agreed in mediation is less than the total legal costs to date and where costs become the major sticking point.
The report recognised that “more work is necessary in order to determine the types of claim and the situations in which compulsory ADR would be appropriate and most effective for all concerned.” There is no one-size-fits-all approach. A number of questions arise: What form of ADR is appropriate for different types of case and at what stage? Are some cases better suited than others? Might ADR be disproportionate in terms of time and cost having regard to the amounts at stake?
Remember that no one is saying that parties to a dispute can be compelled to come to an agreement in mediation. Only that they may be required to try it. As the CJC report confirms, the common feature of the various ADR techniques is that parties at all times retain the ability to refuse to settle and return to the court if they wish to do so.
As one observer commented: “Making ADR mandatory does not guarantee that cases settle, but you do create more opportunities for the rational assessment of litigation risk and to agree on remedies that the courts cannot provide.”
The UK Government’s recent consultation on ‘Reforming Competition and Consumer Policy’ includes proposals to increase the uptake of ADR as a way to support consumers. In particular, the Government is seeking views on whether to make business participation in ADR mandatory in the motor vehicles sector and the home improvements market.
Following the CJC report, the UK Ministry of Justice has launched a call for evidence on the best ways to settle family, business and other civil disputes without resorting to litigation, with this message:
“For far too long the so-called “alternative” approaches to court have been seen as an add-on or diversion for people seeking to resolve a dispute… We want to support people to get the most effective resolution without devoting more resources than necessary – financial, intellectual and emotional – to resolve their dispute.”
This is not just about compulsory ADR. It is also about how to ensure that all cases are resolved quickly, cost effectively and fairly, especially post-pandemic. The key therefore seems to be engaging with the detail rather than the principle. Have we reached this stage in Scotland? If not, now is a good time to regain momentum.
John Sturrock, The Scotsman, Monday 23 August 2021